Two More Courts Analyze New Federal Rule of Evidence 502

May 20, 2009

Federal Rule of Evidence 502 (effective September 2008) generally adopts the majority views on such issues as determining if an inadvertent production of a protected document waives the protection, and the scope of waiver triggered by such an accident. However, courts are already taking different approaches to other aspects of Rule 502.

In Whitaker Chalk Swindle & Sawyer, LLP v. Dart Oil & Gas Corp., Civ. A. No. 4:08-CV-684-V, 2009 U.S. Dist. LEXIS 15901 (N.D. Tex. Feb. 23, 2009), a law firm suing its former client for fees argued that the court could enter an order under Rule 502 preventing any third parties from claiming a waiver triggered by the client’s disclosure of protected documents. The court held that “[a]lthough the rule address [sic] the consequences of an inadvertent disclosure of privileged information, this is not the extent of the rule” — meaning that the court could compel production of the client’s documents under a non-waiver order that Texas state courts would honor. Id. at *9. This opinion seems contrary to the Explanatory Note to Rule 502, which indicates that the Rule was not intended to permit such selective waiver orders. In Heriot v. Byrne, Case No. 08 C 2272, 2009 U.S. Dist. LEXIS 22552 (N.D. Ill. Mar. 20, 2009), the court held that judicial precedent analyzing the waiver effect of an inadvertent protection should “supplement” any analysis based on the factors explicitly listed in Rule 502. Id. at *22 n.7. The court rejected what it called the “rather peculiar” approach taken in Rhoads Industries, Inc. v. Building Materials Corp. of America, 254 F.R.D. 216, 218-27 (E.D. Pa. 2008), which looked solely to the Rule 502 factors. Id.

Reading Rule 502 as permitting a selective waiver seems wrong, but the debate about whether Rule 502 replaces the judicial analysis of an inadvertent production seems mainly academic, because most courts agree on the essential elements of that analysis.